Foreclosure Defense Florida

Riggs v. Aurora- What Are The Legally Operative Facts?

legal-learning-flOne of the greatest things about this foreclosure crisis is the fact that normal, everyday people are learning more about their courts and our system of justice than probably any other time in our country’s history than perhaps the civil rights movement.   I continue to be very impressed with some of the great legal work and excellent information that comes out of non-lawyers.

One of the figures that I am most impressed by is Lisa Epstein from Foreclosure Hamlet.   This amazing woman runs an excellent website, but more than that, she’s become one heck of an expert in foreclosure issues. She is a real example of a hero emerging from the midst of tragedy and crisis. From Lisa comes this next very interesting issue.

So Just What Are The Facts?

On April 21, 2010, the Fourth District Court of Appeals announced its decision in RIGGS v. AURORA LOAN SERVICES. This was a great decision for those in the foreclosure fight because it rejected summary judgment when the endorsement did not match up with the named plaintiff…here is an excerpt from the opinion:

Aurora Loan Services, LLC, filed a mortgage foreclosure action against Jerry Riggs, Sr., alleging that it was the “owner and holder” of the underlying promissory note. Aurora filed a copy of the mortgage and a copy of the promissory note, which named Riggs as the mortgagor and First Mangus Financial Corporation as the mortgagee. The promissory note reflected an “endorsement in blank,” which is a stamp with a blank line where the name of the assignee could be filled in above a pre-printed line naming First Mangus. (emphasis added)

On June 16, 2010, the Fourth District issued a new opinion in this case which affirmed the trial court’s grant of summary judgment.

Aurora filed a mortgage foreclosure action against Jerry Riggs, Sr., alleging that it was the “owner and holder” of the underlying promissory note. With the complaint, Aurora filed copies of the mortgage and promissory note, which named Riggs as the mortgagor and First Mangus Financial Corporation as the mortgagee. Aurora asserted that the original note was in its possession. Aurora moved for summary judgment. In support of the motion, it filed two affidavits attesting that it owned and held the note and mortgage. At the hearing on the motion, Aurora produced the original mortgage and promissory note. The note had an indorsement in blank with the hand printed signature of Humberto Alday, an agent of the indorser, First Mangus. (emphasis added) The circuit court granted summary judgment in favor of Aurora over Riggs’s objections that Aurora’s status as lawful “owner and holder” of the note was not conclusivelyestablished by the record evidence.

It was our friend Lisa Epstein who first alerted the legal community to the fact that the legally operative fact in this case, i.e. whether the note was endorsed properly or not changed from the first opinion to the second opinion.   No explanation is provided in either opinion so inquiring legal minds all across the country are wondering….

WAS THERE NO PROPER ENDORSEMENT AS REFLECTED IN THE APRIL 21, 2010 RULING OR WAS THERE A POTENTIALLY PROPER ENDORSEMENT AS CITED IN THE

JUNE 16, 2010 ORDER?

I’m just dying to find out the answer to this very significant question……

17 Comments

  • forensicmortgageexaminers says:

    First Magnus Financial Corporation filed a voluntary bankruptcy petition under chapter 11 on August 21, 2007. The case number is 4-07-bk-01578-JMM.

  • forensicmortgageexaminers says:

    Here’s a link to a putative class action involving FORMER employees of First Magnus, file 10/28/2009. Mr. Alday is listed as having worked for the Correspondent Lending arm of First Magnus.

    https://www.kvoa.com/files/warn%20payment.pdf

  • ForeclosureHamlet says:

    Oh, this is sort of embarrassing after such glowing accolades. If the truth be known, one of the members of ForeclosureHamlet.org brought this up first during the regular late night chat session we had on June 16th. He may come forward to claim the praise that is rightfully his if he so wishes.

    We were bitterly mocking the commonplace travesty of justice involving a mysterious appearance of an unauthenticated, dubious robo-signer’s name on evidence filed in an American court leading to the wrongful eviction of one more family.

    Lisa
    ForeclosureHamlet.org

    • J.R. Homeowner says:

      One of the fantastic things about Foreclosure Hamlet is the way in which members openly share and discuss various cases that have serious implications for all of us facing foreclosure.

      I think I may have been the one that noticed this glaring issue in the Riggs case.

      In the course of discussing the aforementioned case this past evening, I couldn’t help but note the very clear and precise mention in the lower court’s ruling from April 21, 2010 wherein I believe it was specifically mentioned that there was NO SIGNATURE on the alleged note assignment provided to the court.

      Later, the apellate court ruling goes into some detail regarding the signature of one Mr. Alday and the court takes issue with the fact that this endorsement was never previously challenged by the defendant.

      What immediately struck me is:

      In the lower court we have an assignment that is bereft of any endorsement signature and this deficiency is even commented upon by the lower court in it’s ruling, and then:
      PRESTO!, a signature of Mr. Alday “magically” appears on those documents before the appeals court!

      The apellate court then states that the assignment, (and Mr. Alday’s signature), was never challenged by the defense at the lower court!

      HOW COULD THE DEFENSE TAKE ISSUE WITH A SIGNATURE THAT EVIDENTLY WASN’T THERE BEFORE??!!!

      One of the great things about Foreclosure Hamlet is that Lisa Epstein and others routinely offer these cases up for discussion and many of us pour over them in great detail looking for anything and everything that might help us in our own defense of our foreclosure cases.

      While our “Happy Little Hamlet” is composed chiefly of pro se litigants and not members of the bar, I personally do not think that one is likely to find a better group of lay researchers anywhere.

      For us THIS IS PERSONAL.

      We all feel deeply whenever a defendant loses their home, especially when we see what appears to be such obvious FRAUD being perpetrated on the courts by these pretender lenders.

      It is those very same courts that we hope will offer us honesty and fairness when we have our time before them.

      Incomprehensible rulings, like this one in Mr. Riggs case, cause all of us to have very great concern both for ourselves and for others.

      What is even more deeply concerning, as evidenced with the Riggs case, is the obvious and brazen way that these plaintiffs will even perpetrate FRAUD upon the appeals courts.

      I’m left wondering HOW the apellate court could have possibly missed the obviousness of this fraud. Did they NOT READ the lower court’s ruling??!!

      One of the great bastions of honesty in this war is Lisa Epstein. She takes credit where it is abundantly due her, as with her magnificent comments to the Florida Supreme Court that, in no small measure, had great impact in our now having the verified complaint rule. She also refuses credit when such is due to others.

      Although we have yet to meet, I am proud to call Lisa my friend.

      Let us all pray that justice may yet be accorded Mr. Riggs.

  • indio007 says:

    Seems to me like the record was “augmented” somehow. How come the first one says a copy was presented and the second says first a copy then an original was brought in ?
    In any event it would seem the copy had a different endorsement than the original. How did the original get a signature that the copy didn’t have?

    More fishiness…. I don’t even want to believe the court of appeals has been corrupted.

  • indio007 says:

    case 1
    “In the instant case, the endorsement in blank is unsigned and
    unauthenticated,”

    case 2
    “As an agent of First Magnus, Alday’s
    hand printed signature was an effective signature under the Code.”

    did they go temporarily blind?

    • J.R. Homeowner says:

      From what evidence we have thus far, I think it is apparent that the defendant never had the opportunity to challenge this signature.

      It simply wasn’t there, yet “magically” appeared before the appellate court.

      Justice is supposed to be blind, but who could have ever imagined this kind of blindness!

  • avirani0203 says:

    This is a case where “fraud on the court” is clearly evident. What was the procedural history between the first DCA ruling and the second DCA ruling? Did the bank file a motion for reconsideration and attach the second note with the stamped endorsement? Was Mr. Riggs given an opportunity to reply? Did the 4th DCA simply ignore the evidence presented the first time around?

    This has a very strong stinky fish smell to it. How can you have 2 divergent rulings from the same evidence unless the evidence was changed? If I am correct, the appellate judges must rule on the evidence presented at the tiral court level. They cannot accept fabricated evidence that had not been previously introduced.

    I believe this case needs to be referred for an investigation into the law firm as well as the judges sitting on the 4th DCA. I hate to believe that the judges were complicit but, so far, the evidence points in that direction. Someone needs to take a very hard look at this case.

  • forensicmortgageexaminers says:

    Someone correct me if I’m wrong, but… since Mr. Alday doesn’t appear to be an OFFICER of First Magnus, wouldn’t there be a way to challenge this “signature” in court?

    • J.R. Homeowner says:

      I’m sure Mr. Alday’s authority, or lack thereof *would* have been challenged had the defendant had the opportunity to do so.

      From the April 21, 2010 Appellate Court Decision:

      “The trial court granted
      summary judgment in favor of Aurora over Riggs’ objections that
      Aurora’s status as lawful ” owner and holder” of the note was not
      conclusively established by the record evidence. We agree with Riggs and
      reverse the summary judgment.

      In the instant case, the endorsement in blank is UNSIGNED and
      unauthenticated, creating a genuine issue of material fact as to whether
      Aurora is the lawful owner and holder of the note and/or mortgage. As
      in BAC Funding Consortium, there are n o supporting affidavits or
      deposition testimony in the record to establish that Aurora validly owns
      and holds the note and mortgage, no evidence of an assignment to
      Aurora, no proof of purchase of the debt nor any other evidence of an
      effective transfer. Thus, we reverse the summary judgment and remand
      for further proceedings. We find no merit in any of the other arguments
      raised on appeal.”
      (emphasis mine)

      Then from the June 16, 2010 Appellate Court Decision:

      “Aurora moved for summary judgment. In support of the motion, it
      filed two affidavits attesting that it owned and held the note and
      mortgage. At the hearing on the motion, Aurora produced the original
      mortgage and promissory note. The note had an indorsement in blank
      WITH THE HAND PRINTED SIGNATURE OF HUMBERTO ALDAY, an agent of the
      indorser, First Mangus.

      An indorsement requires a ” signature.” §
      673.2041(1), Fla. Stat. (2008). As an agent of First Magnus, Alday’s
      hand printed signature was an effective signature under the Code. See
      § § 673.4011(2)(b), 673.4021, Fla. Stat. (2008).

      There is no issue of authentication. The borrower did not contest that
      the note at issue was the one he executed in the underlying mortgage
      transaction. With respect to the authenticity of the indorsement, the
      note was self authenticating. Subsection 90.902(8), Florida Statutes
      (2008), provides that ” [c]ommercial papers and signatures thereon and
      documents relating to them [are self authenticating], to the extent
      provided in the Uniform Commercial Code.” Subsection 673.3081(1),
      Florida Statutes (2008), provides that ” [i]n an action with respect to an
      instrument, the authenticity of, and authority to make, each signature
      o n th e instrument is admitted unless specifically denied in the
      pleadings.” Nothing in the pleadings placed the authenticity of Alday’s
      signature at issue.”

      ……….

      The evidence of the record appears to be crystal clear.

      MR. ALDAY’S SIGNATURE WASN’T THERE BEFORE!

      • mares says:

        Could it be that he never challenged the authenticity of the note from the jump. And the focus shifted to the assignment and the signature of Aldays and not his own signature??

  • ForeclosureHamlet says:

    Forensicmortgageexaminers: I’ve heard, as I observe in court, that argument raised over and over only to be shot down over and over. I think the specific UCC Florida Statute exludes promissory notes, from what the answer is over and over.

  • Mark Cuyler says:

    Please email me with any new info on foreclosures.

  • Al says:

    If the loan is securititized then the original note is supposed to be transferred to the MBS trust to comply with the SEC, NY Law, and IRS rules & regulations that give the MBS Trust tax exempt status.If the loan servicer has possession of the original note endorsed in blank this is evidence of securities fraud, tax fraud, and violation of NY laws that govern MBS Trusts.Consequently the investors in the MBS Trust have invested in nothing. See MERS recommended Foreclosure Procedures…footnotes for confirmation of this fraud.

    • Raymond says:

      You are 100% correct with your assertion. One can also check up in EDGAR, the SEC website to ascertain if a FORM 15 was filed. If this is the case, all or most of the securities were sold on Wall Street, and the TRUST is then no longer the owner/mortgagee of the security. To make 100% sure about a particular security, Bloomberg Terminal WILL provide this information but many companies charge up to $500 to perform this search. Check up aswell to ascertain whether each security was not owned by numerous trusts. In some cases the securities were found in up to 9 different trusts.
      Also, JPMorgan Chase did NOT purchase WaMu Bank NA. WaMu was seized by the OTS(now defunct),closed down/dissolved and appointed the FDIC to act as RECEIVER whose sole duties were to dispose of the ASSETS and LIABILITIES. The 39 page Purchase and Assumption Agreement (PSA) between the FDIC and JPMORGAN CHASE is specific about this aspect. WaMu Bank NA, the entity that was closed by the OTS, did NOT own the securities in the trusts.
      In most cases the trustee of the REMIC trusts, was dissolved before the foreclosure suits were filed (check up with the company registrations in each State to see if they were not withdrawn/dissolved from operating in that particular State).
      MOST of the Pooling and Servicing Agreements(PSA) of the trusts are specific in that the SERVICER shall foreclose and NOT the TRUSTEE. These PSA’s are down-loadable from EDGAR, as are the Prospectus and the Supplement to the Prospectus in each case. These documents are clear as to who SHALL foreclose in line with the testimony of David Beck to the US Senate on April 13 2010.
      A word of CAUTION….Before taking on an attorney, ask him/her to give evidence (county, case #, Plaintiff/Defendant) that they PREVAILED in foreclosure matters to the end. VERY, VERY FEW have succeeded.

    • TONER says:

      I have been communicating with ex IRS agent.. retired. I suggest we all try to get the correct IRS forms included in our cases. According to this agent.. there has been HUGE tax evasion on each securitized loan.. meaning 100% taxation penalty. No house can be foreclosed on while owing taxes to IRS. So any servicer who admits they own your mortgage is subject to 100% tax on that property. Demand tax filings from these lender/servicers. 100% tax is more than is owed by far on any mortgage…. I too have been fighting Aurora, endorsement in blank… blah blah.. use small claims court to get documents rescinded.. challenge NOD..per civil code 2941 b trustees do not possess notes or docs to foreclose, which they have to have in order to foreclose..but if you don’t challenge NOD and trustee, it becomes valid.

      • lynmillion says:

        Toner:

        What is NOD and could you elaborate on where you got the “no house can be foreclosed on while owing taxes to IRS”? I would be interested in these concepts.

Leave a Reply